SCOTUS will not decide if the partner of the NC law firm was also an employee

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  • 4th Circuit said Title VII does not protect Myers Bigel’s partner
  • Applicant asserted that the SCOTUS test from ADA case does not apply to Title VII

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(Reuters) – The United States Supreme Court on Monday refused to consider a ruling that a former shareholder in the North Carolina intellectual property law firm, Myers Bigel, was not an employee of the firm and could not sue for racial discrimination and reprisals.

The judges denied certiorari to Shawna Lemon, who said that a test created by the Supreme Court in 2003 to determine whether a shareholder of a company is also an employee under the Americans with Disabilities Act should not s ” apply to claims filed under Title VII of Civil Rights. Law of 1964.

Lemon in a July petition said Title VII protections apply more broadly to “individuals” rather than just employees. Lemon says she was forced to resign after suffering retaliation for pushing back Myers Bigel refused to disclose the results of an investigation into gender bias within the company.

The question of “shareholder” status has frequently arisen in bias complaints against law firms, including a landmark sex discrimination case filed by female lawyers against Chadbourne & Park, now Norton Rose Fulbright, which was finally settled in 2018.

In Lemon’s case, the U.S. 4th Court of Appeals, in a January ruling upholding the dismissal of her lawsuit, said that as a partner and co-owner of the business, she could not be considered his employee.

Lemon’s attorney, Nathaniel Pencook of Nelson Mullins Riley & Scarborough, did not immediately respond to a request for comment. Myers Bigel’s lawyers are no longer at Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan.

The 4th Circuit and the North Carolina federal judge who dismissed the Lemon case had applied the 2003 Supreme Court decision in Clackamas Gastroenterology Associates PC v. Wells, which involved allegations of disability bias by a former shareholder in a medical practice.

The Clackamas court said that whether shareholders are employees under the ADA depends on how much control a company has over their work. The court applied six factors, including whether a shareholder can be terminated and share in the profits and losses, and whether the individual’s work is closely watched.

Lemon in his petition told the Supreme Court that Congress, in passing Title VII, never intended shareholders of professional companies to do without workplace discrimination protections.

And the economic interest that partners have in law firms offers no real protection against discrimination, Lemon’s lawyers wrote, because “a controlling faction of the firm” can always make biased decisions.

The case is Lemon v. Myers Bigel PA, United States Supreme Court, No. 21-74.

For the lemon: Nathaniel Pencook of Nelson Mullins Riley & Scarborough

For Myers Bigel: Kerry Shad of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan

Daniel Wiessner

Dan Wiessner (@danwiessner) reports on labor, employment and immigration law, including litigation and policy development. He can be reached at [email protected]


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